SHRM Urges Congress to Amend National Labor Relations Act

Lengthier election period, greater employee privacy and no micro-units sought

By Allen Smith, J.D. Jun 15, 2017
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​The so-called ambush election rule should be shelved, according to the Society for Human Resource Management (SHRM), which presented testimony to the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions yesterday. The subcommittee met to hear witnesses discuss three proposed amendments to the National Labor Relations Act (NLRA)—H.R. 2776, H.R. 2775 and H.R. 2723.

Nancy McKeague, SHRM-SCP, senior vice president and chief of staff for the Michigan Health & Hospital Association (MHA) in Okemos, Mich., spoke on behalf of SHRM. McKeague said that the election rule greatly diminishes the ability of employers to adequately respond to organizing drives because the period between the filing of a union petition and union election is too short.

The rule, created by the National Labor Relations Board, allows for an election within 11 days of a union petition being signed.

Contrast this with the ability of unions to prepare for their entire organizing campaigns before they are made public, she said. This "clearly creates an imbalance between the rights of employees, employers and labor organizations in the pre-election period," she said. "This imbalance is compounded for small employers who may lack an HR professional or access to legal counsel and for multistate employers who may have decentralized operations, making expedited communication with employees very difficult."

SHRM supports H.R. 2776, the Workforce Democracy and Fairness Act, which would ensure that no union elections could be held in less than 35 days after the filing of a union petition.

Safeguarding Employees' Personal Information

McKeague also criticized the ambush rule's requirement that employers provide workers' personal information to union organizers, such as home addresses and home and cellphone numbers, without employees' consent once a union presents an employer with a petition for unionization.

[SHRM members-only HR Q&A: What is the excelsior list?]

One of an HR professional's greatest responsibilities is keeping employees' personal information confidential, she said in written testimony. "In fact, failing to do so is grounds for immediate termination at my organization," she stated. At MHA, HR professionals collect not only employees' full names and Social Security numbers but also those of employees' spouses and children. MHA also collects military records, immigration records, medical records, divorce records, education transcripts, security and background check information, and occasionally credit reports.

"If we begin to provide to a third party, without employees' consent, personal information such as home addresses, home telephone numbers, cellphone numbers and shift schedules, how long do you think the employee will trust us with the rest of the employment information we keep?" she asked, calling the requirement to provide the personal information to union organizers "abhorrent." McKeague noted that SHRM supports H.R. 2775, which would allow employees to choose how they should be contacted if an employer received a union petition.

Also challenging is the requirement for the voter eligibility list and employee contact information to be provided to the organizing union within two workdays of the direction of election. Previously, employers had seven workdays to provide this information. "For security reasons, employee information may be housed in different software programs or databases, meaning it is next to impossible in some circumstances to compile this information in two business days, let alone guarantee its accuracy," she testified. H.R. 2775 would require the provision of the contact information no earlier than seven days after a final determination by the board of the appropriate bargaining unit.

Micro-Bargaining Units

A decision by the National Labor Relations Board allows labor organizations to form micro-bargaining units, permitting the unions to target only subsets of employees who are most likely to support organized labor, she stated in written testimony.

"Micro-unions are of particular concern to MHA because health care is the ultimate team endeavor, where the needs of the patient must come first," she said. If nurse practitioners in the cardiac intensive care unit are organized but physician assistants are not—or vice versa—and two of each respond to a code blue, it is likely that someone will violate the collective bargaining agreement during the emergency. "This can happen when supervisory roles overlap or change, when a medical staff member moves into mandatory overtime or when a medical staff member is called in from another unit, for example," she said. "Any of these scenarios could result in a deviation from standard work rules under the collective bargaining agreement."

Micro-units discourage teamwork, she asserted. "This subdivided situation is terrible for any employer but is a matter of life or death in a health care setting," McKeague stated.

Third Bill Criticized

Guerino Calemine III, general counsel for the Communications Workers of America, criticized the Employee Rights Act (H.R. 2723), which SHRM did not support, as the most "extreme and provocative, anti-union and anti-worker" bill he'd ever seen. He noted that the bill would require the majority of the employees in a unit to vote for a union in order for the union to prevail, not the majority of employees voting in the election. Calemine observed that many members of Congress would not win if the majority of residents in their districts had to vote for them in order for them to win.

He also opposed a proposal in H.R. 2723 that would automatically require a new secret ballot election whenever the recognized bargaining unit undergoes turnover exceeding 50 percent of the unit in existence at the time of the preceding election.

But he took aim at the other two bills as well, saying the three bills were "nothing but bad news for American workers."

Calemine said that if employees want a union under the proposed legislation, they would have to wait while the Employee Rights Act fast-tracks union decertification.

 

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